This matter is before the Authority on exceptions to the award of
Arbitrator Wayne G. Anderson filed by the Agency under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Rules and Regulations. The Union filed an opposition to the
Agency's exceptions.

The grievances concerned the Agency's denial of annual leave to vessel
pilots who failed to report to duty on time because they had overslept. The
Arbitrator ruled that the Agency violated the parties' agreement when it: (1)
placed the pilots in an absent-without-leave (AWOL) status; and (2) denied the
pilots pay for leave already earned.

For the reasons discussed below, we find that the Arbitrator's award is
not contrary to law, rule or regulation. Accordingly, we deny the Agency's
exceptions.

II. Background and Arbitrator's Award

The grievants are vessel pilots "whose principal duty is to board
vessels transiting the [Panama] Canal, take operational control of those
vessels and pilot them from one ocean to the other." Exceptions at 2. Several
pilots overslept and failed to report for duty on time and missed ships to
which they were assigned. The Chief Pilot recorded each pilot as being absent
without leave (AWOL).

The grievants contended that placing them in an AWOL status violated
Article 17, Section 7(g) of the collective bargaining agreement. Article 17,
Section 7(g) was directed to be included in the parties' agreement by a member
of the Federal Service Impasses Panel (FSIP or Panel) acting as an interest
arbitrator to resolve a contract negotiations impasse that had occurred between
the parties. SeePanama Canal Commission and International
Organization of Masters, Mates and Pilots, Marine Division, ILA, AFL-CIO,
84 FSIP 73 (1985). Article 17, Section 7(g) states:

Section 7(g) A pilot who has not completed forty (40) hours in a
workweek and who requests leave due to illness or who fails to commence an
assignment will be placed on leave, or if he has no leave, will be charged
leave without pay.

The grievances were submitted to arbitration on the following
issues:

1. Was the Commission correct in its interpretation of Article 17,
Section 7(g) in timing the Grievants AWOL when they failed to appear for duty
as assigned? If not, what is the appropriate remedy?

2. Whether the issuance of a letter of reprimand to [one of the
grievants] was for just cause as defined by Article 11, Section 2(a) of the
Contract? If not, what is the appropriate remedy.

Award at 5.

The Arbitrator interpreted Article 17, Section 7(g) as precluding the
Agency from denying leave or leave without pay to vessel pilots who were late
in arriving at, or absent from, their duty assignments. Id. at 15. The
Arbitrator pointed out that the pilots were on notice from the Agency that they
were responsible for getting to work on time and that they would be "timed as
AWOL" if they were late or missed an assignment. Id. at 12-13. The
Arbitrator also noted that the Agency has the right to discipline a pilot for
unexcused tardiness or absence from work due to oversleeping. Id. at 13.
The Arbitrator determined, however, that "[t]he [Agency] in agreeing to Section
7(g) gave up the right to place a pilot in AWOL status." Id. at 15.

The Arbitrator found that placing a pilot who oversleeps in AWOL status
is not a disciplinary action, but rather is an administrative measure not
permitted under Article 17, Section 7(g). Id. The Arbitrator rejected
the Agency's contention that "to interpret Section 7(g) as preventing the
timing of an absent pilot in AWOL status is legally prohibited [under] 5 U.S.C.
7106." Id. The Arbitrator stated that "Section 7(g) must be interpreted
to mean what it says[:] 'a pilot who has not completed forty hours in a work
week --- who fails to commence an assignment will be placed on leave, or if he
has no leave, will be charged leave without pay.'" Id. at 16.

The Arbitrator concluded that the language of Article 17, Section 7(g)
was clear and that he was "unable to find any ambiguity or violation of"
section 7106 of the Statute. Id. The Arbitrator noted that "[i]f the
Commission should appeal this award and is found correct in contending that
preventing the timing of an absent pilot in AWOL status is legally prohibited
then Section 7(g) is rendered unenforceable." Id.

The Arbitrator made the following award:

1. The Commission improperly timed as AWOL under Article 17, Section
7(g) these Grievants who failed to commence assigned duty because of tardiness
or absence due to oversleeping; and

2. The Commission has a right to discipline pilots under Chapter 751
Appendix A Schedule of Disciplinary Offenses and Penalties for conduct
described in the cases of the Grievants.

Id. at 17.

III. Positions of the Parties

A. Agency's Exceptions

The Agency argues that the award should be set aside because the
Arbitrator interpreted Article 17, Section 7(g) of the contract in a manner
that is contrary to management's right to assign work under section
7106(a)(2)(B) of the Statute. The Agency contends that the Arbitrator's
interpretation of Article 17, Section 7(g) impermissibly deprives management of
its discretion to deny leave to employees because the award obligates the
Agency to grant leave whenever the pilots had not completed 40 hours in a
workweek and had failed to start an assignment. Exceptions at 10.

The Agency notes that Article 17, Section 7(g) resulted from impasse
proceedings conducted by a member of the FSIP, and states that it "is well
aware of the Authority's decision concerning the forum for challenging a
nonnegotiable order by a Panel member acting as an interest arbitrator."
Id. at 5 n.3 (emphasis in original). The Agency referenced Department
of Defense Dependents Schools (Alexandria, Virginia), 27 FLRA 586 (1987),
which was later reversed and remanded in Department of Defense Dependents
Schools v. FLRA, 852 F.2d 779 (4th Cir. 1988) (DODDS). The Agency
states further that its exceptions in this case to the grievance arbitrator's
award are "predicated solely on the arbitrator's interpretation
of a provision in the collective bargaining agreement." Exceptions at 5 n.3
(emphasis in original).

B. Union's Opposition

The Union contends that the Agency's exceptions should be dismissed
because: (1) Article 17, Section 7(g) is a procedure which does not infringe on
management's right to assign work; (2) the grievances involved questions of pay
rather than the right to assign work; and (3) the Arbitrator's interpretation
of the contract does not infringe on the right to assign work. Opposition at
3-6. The Union asserts that "to the extent that the right to grant or deny
leave may be an inherent part of the right to assign work, the Agency exercised
that right in agreeing to the procedure of Section 7(g) of Article 17."
Id. at 4.

IV. Analysis and Conclusions

The Arbitrator interpreted Article 17, Section 7(g) as: (1) requiring
the Agency to grant leave or leave without pay to pilots who are late or absent
from their work assignments; and (2) precluding the Agency from timing the
affected pilots as AWOL.

The question is whether the Arbitrator's award enforcing Article 17,
Section 7(g) of the collective bargaining agreement is deficient because it is
contrary to law. Article 17, Section 7(g) of the collective bargaining
agreement requires the Agency to grant leave or leave without pay to a pilot if
that pilot has not worked 40 hours in a workweek and fails to begin a scheduled
duty assignment on time. The Agency claims that the award is deficient because
the Arbitrator's interpretation of Article 17, Section 7(g) to preclude denial
of leave or the timing of employees as AWOL violates management's right to
assign work under section 7106(a)(2)(B) of the Statute.

In Department of the Treasury, U.S. Customs Service and National
Treasury Employees Union, 37 FLRA 309 (1990) (U.S. Customs Service),
the Authority defined the approach that is to be used when an agency contends
that an arbitrator's award enforcing an agreement provision is contrary to
section 7106(a) of the Statute. The Authority held as follows:

[W]e will examine the provision enforced by the
arbitrator to determine (1) if it constitutes an arrangement for employees
adversely affected by the exercise of management's rights, and (2) if, as
interpreted by the arbitrator, it abrogates the exercise of a management
right.

. . . .

If it is evident that the provision constitutes an arrangement and,
as interpreted by the arbitrator, does not abrogate management's rights, the
provision is within the range of matters that can be bargained under the
Statute. Consequently, we will not find that the award is contrary to law, and
we will deny the exception. If the arbitrator's interpretation does result in
an abrogation of management's rights under section 7106(a), the award will be
found deficient as contrary to law under section 7122(a) of the Statute; the
contractual provision, susceptible to a different and sustainable
interpretation by a different arbitrator will not be affected.

Id. at 314.

Applying that approach in this case, we find that the Agency fails to
establish that the award is contrary to law. Rather, the Arbitrator has
interpreted and enforced a provision of the parties' collective bargaining
agreement which constitutes an arrangement for employees adversely affected by
the exercise of management's right to assign work. The Arbitrator determined
that the affected pilots were not excused from discipline for their conduct and
noted that "[o]versleeping is a consequence of irregular hours of work and
change from wakeup calls." Award at 13. The Arbitrator determined that the
Agency violated the parties' agreement by timing as AWOL pilots who had
overslept, and who were consequently late for their duty assignments. The
Arbitrator found that Article 17, Section 7(g) "meant what it said" and,
therefore, the Agency was required to grant the affected pilots leave or leave
without pay. We find that in directing the Agency to grant leave or leave
without pay to the grievants, the Arbitrator merely interpreted and enforced a
provision of the parties' collective bargaining agreement that constitutes an
arrangement for employees adversely affected by their irregular work hours.

Further, we find that Article 17, Section 7(g), as interpreted and
applied by the Arbitrator, does not abrogate the Agency's right to assign work
under section 7106(a). In U.S. Customs Service, the Authority held that
an award "abrogates" a management right when the award "precludes an agency
from exercising" that right. U.S. Customs Service, 37 FLRA at 314. The
Arbitrator's award enforcing Article 17, Section 7(g) only precludes the Agency
from denying leave to the affected pilots in the circumstances of this case.
Preventing the Agency from denying leave or leave without pay to the affected
pilots would not prevent the Agency from denying leave to employees, including
the pilots in this case, in other circumstances.

The Arbitrator's award enforcing Article 17, Section 7(g), therefore,
does not preclude the Agency from exercising its right to assign work under
section 7106(a)(2)(B) of the Statute. Rather, the award only requires the
Agency to comply with Article 17, Section 7(g) of the collective bargaining
agreement, in which the Agency agreed to grant leave or leave without pay to a
pilot if that pilot had not worked 40 hours in a workweek and failed to begin a
scheduled duty assignment on time. The award merely constitutes the
interpretation and enforcement by the Arbitrator of the arrangement that is
encompassed within Article 17, Section 7(g), an enforceable provision contained
in the parties' agreement. SeeU.S. Customs Service, 37 FLRA at
317. Accordingly, we conclude that Article 17, Section 7(g), as interpreted and
applied by the Arbitrator, does not abrogate the exercise of management's right
to assign work under section 7106(a). Consequently, the Agency's exceptions
provide no basis for finding the award contrary to section 7106(a). Id.